Therefore, even those black applicants who had high LSAT scores and LGPAs, as evidenced by their admission to and graduation from a range of Ivy League law schools, and who presumably had received relatively good educational preparation and experience, uniformly failed that administration of the Georgia Bar Examination. Return to text.

[51] Tyler, 517 F.2d at 1093. Return to text.

[52] Id. Return to text.

[53] Id. Return to text.

[54] Id. at 1094. In support of this theory, the plaintiffs introduced the deposition testimony of a professional linguist, who held a Ph.D. in the field and had spoken and published widely about Black English, including its history and usage in America. Id. The linguist indicated that there was such an English variant, distinct and identifiable, and that under extreme stress, such as a bar exam, an individual who had been raised in this dialect might well revert to it notwithstanding years of formal training in standard English. Id. Return to text.

[55] Id. Return to text.

[56] Id. The black appellants argued that, notwithstanding this acknowledgment by their own expert, the use of Black English in a bar examination essay response could still be the basis for overt discrimination because even if the grader did not recognize it as a racial characteristic, he would still react "negatively because he conceives it to be incorrect." Id. Recent studies provide support for the appellants' arguments. See discussion supra note 17. Return to text.

[57] Tyler, 517 F.2d at 1093. Return to text.

[58] Id. at 1093 n.1. Return to text.

[59] Id. Return to text.

[60] Id. at 1095. Return to text.

[61] Id.; see Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e (1996). As construed by the then-operative, but now-overturned, case of Griggs v. Duke Power Co., Title VII prohibited the use of any testing process or procedures, regardless of intent or motive, that had the effect of disproportionately excluding members of a protected minority class of persons, unless such tests were "demonstrably a reasonable measure of job performance." 401 U.S. 424, 425 (1971). Under the EEOC guidelines interpreting Title VII, which were in place at the time:

The use of any test which adversely affects hiring, promotion, transfer or any other employment or membership opportunity of classes protected by Title VII constitutes discrimination unless: (a) the test has been validated and evidences a high degree of utility as hereinafter described, and (b) the person giving . . . the particular test can demonstrate that alternative suitable hiring, transfer or promotion procedures are unavailable for his use.

[62] 401 U.S. 424 (1971). Return to text.

[63] Id. at 425. Return to text.

[64] Tyler, 517 F.2d at 1096. Return to text.

[65] Id. Return to text.

[66] Id. Return to text.

[67] Id. Return to text.

[68] Id. The appellants actually posited that the Bar Examination was a type of super-employment test, in that failure resulted not simply in the loss of a specific job, transfer, or promotion, but rather in the inability to practice law anywhere in the entire state. Id. Nonetheless, the court was not persuaded. Id. Return to text.

[69] Id. Return to text.

[70] See id. at 1099. The court went on to observe, "The hallmark of a rational classification is not merely that it differentiates, but that it does so on a basis having a fair and substantial relationship to the purposes of the classification." Id. Return to text.

[71] Id. at 1098. In fact, the court referred to its holding in this regard as "our refusal to measure the constitutionality of the Georgia Bar Examination by Title VII standards." Id. at 1098-99. Return to text.

[72] See, e.g., Allen v. City of Mobile, 466 F.2d 122 (5th Cir. 1972), cert. denied, 412 U.S. 909 (1973); Geduldig v. Aiello, 417 U.S. 484 (1974); Communications Workers of Am. v. AT&T, 513 F.2d 1024 (2d Cir. 1975), vacated, 429 U.S. 1033 (1977); Wetzel v. Liberty Mut. Ins. Co., 511 F.2d 199, (3d Cir. 1975), vacated and remanded, 424 U.S. 737 (1976); Gilbert v. General Elec. Co., 519 F.2d 661 (4th Cir. 1975), rev'd, 429 U.S. 125 (1976). Return to text.

[73] Tyler, 517 F.2d at 1099. Return to text.

[74] Id. (citing Jefferson v. Hackney, 406 U.S. 535 (1972); James v. Valtierra, 402 U.S. 137 (1971); comparing Geduldig v. Aiello, 417 U.S. 484 (1974)). Return to text.

[75] Id. at 1100. Return to text.

[76] Id. Return to text.

[77] Id. Return to text.

[78] Id. The court noted that when this showing has been met, it shifts the burden of proof to the defendant to demonstrate that, in fact, "invidious discrimination was not among the reasons for his actions." Id. However, the court concluded that it did not have to decide whether this standard applied in the instant case because of its conclusion that the appellee-examiners had carried their burden of demonstrating the absence of any genuine issue of material fact regarding intentional racial discrimination. Id. Return to text.

[79] Id. Return to text.

[80] Id. at 1101. Return to text.

[81] Id. at 1101-02 (citing Armstead v. Starkville Mun. Separate Sch. Dist., 461 F.2d 276 (5th Cir. 1972)) (holding that the Graduate Record Examination was an unconstitutional method for selecting primary and secondary school teachers since it failed to meet the standard of a rationally supportable examination established therein). Return to text.

[82] Id. at 1102. Return to text.

[83] Id. Return to text.

[84] Id. Return to text.

[85] Id. The court also rejected appellants' argument that the Board of Examiners should be required to use model answers and predetermined standards in grading, since these were merely suggestions for improvement and did not go to the question of whether the examination was reasonable. Id. Similarly, the court rejected appellants' arguments that the Board of Examiners was acting unreasonably in at least two other respects: 1) because its practice of determining which failing exams were to be reviewed and regraded was based not on a definitive numerical cutoff, but rather on the exercise of an examiner's own discretion, and 2) because it employed the practice of comparing examination results with the law school records of the examinees. Id. at 1103. Return to text.

[86] Id. Return to text.

[87] Id. Return to text.

[88] Id. at 1103-04. Return to text.

[89] Id. at 1104. The court noted in this regard that, even if it were to make the "generous assumption that one out of every hundred applicants who take the examination fail[s] when they should have passed due to arbitrary grading, the probability that the same individual would be the victim of error after two reexaminations is literally one in a million." Id. (citation omitted). The court was also impressed with the fact that the hearing process itself could be susceptible to error. See id. Accordingly, on balance they saw little advantage to providing such a review and certainly no constitutional error in not providing one. See id. at 1104-05. Return to text.

[90] Id. at 1095. Return to text.

[91] Id. Return to text.

[92] Id. at 1097. Return to text.

[93] Id. at 1099 (citation omitted). Return to text.

[94] Id. at 1101. Return to text.

[95] Id. Return to text.

[96] Id. at 1102 (quoting an unreported opinion of the court granting summary judgment in one of the consolidated actions comprising the appeal at issue). Return to text.

[97] Id. at 1103. Return to text.

[98] Id. at 1093 (quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962)). Return to text.

[99] Id. at 1108. Interestingly, the dissent also cited Poller, as had the majority, to support this proposition. Return to text.

[100] Id. at 1105. Return to text.

[101] Id. at 1106. Return to text.

[102] Id. Return to text.

[103] See infra note 108 regarding the impermissibility of presumptions of racial inferiority. Return to text.

[104] Tyler, 517 F.2d at 1105. This applicant pool consisted, in part, of at least six blacks who were recent graduates of three of the finest law schools is the country, and yet each of them failed this Bar Examination. See supra note 50. Return to text.

[105] Tyler, 517 F.2d at 1106 (citations omitted). Return to text.

[106] Id. There is no record of either an official inquiry or investigation by the Georgia State Board of Bar Examiners as a consequence of this 100% bar failure rate of all 40 black applicants. This is particularly striking in light of the fact that among that group were six black applicants who had been graduated from Harvard, Yale, and Columbia law schools. See SEGAL, supra note 7, at 11-12. The dissent noted, in this regard, that there was "the absence of an investigation, or indeed any effort, by the administrators of the state program in question to ascertain whether the seemingly purposeful discrimination is intentional in fact or is explainable by the circumstances." Tyler, 517 F.2d at 1106. Return to text.

[107] Perhaps there are more benign explanations for the Board of Bar Examiners' nonreaction to such unanimous failure, but I am at a loss to think of one. As the dissent in Tyler pointed out, there was, and to a large extent still is today, a widespread presumption, particularly in states such as Georgia, of the intellectual inferiority of blacks as a race. This presumption strikes me as the most, in fact the only, logical explanation for the Board's apparently passive reaction to such stark bar results. Although private individuals are free to harbor such racist presumptions about the intellectual capacity of an entire race of people, such an attitude is absolutely unacceptable as a basis for either state action or inaction. Again, as the dissent in Tyler pointed out, with respect to state action, "a presumption of racial inferiority is simply not permissible." Id. Return to text.

[108] Id. Such presumptions have been a part of our common American heritage since before the founding of the Republic and continue to haunt us to this day. See infra part V.B. Return to text.

[109] Tyler, 517 F.2d at 1105. Return to text.

[110] Id. at 1106. Return to text.

[111] Id. at 1093. The Board of Bar Examiners thus denied both that there was any actual racial animus and that, even if there were, there was no opportunity to act upon it since the examiners could not discover an applicant's race before grading his or her exam. Id. Return to text.

[112] 461 F.2d 276 (5th Cir. 1972) (holding that the Graduate Record Examination was an unconstitutional method for selecting primary and secondary school teachers). Return to text.

[113] Tyler, 517 F.2d at 1102. The test suggested that a rationally supportable examination should meet two standards: 1) be designed for the purpose for which it is being used, and 2) utilize a cutoff score related to the quality which the examination purports to measure. Id. Return to text.

[114] Id. Return to text.

[115] Id. Return to text.

[116] Id. at 1106. In reaching this conclusion, Judge Adams observed in a footnote that he did not mean "by this statement to impugn the integrity of the examiners. Rather, [he] suggest[ed] only that it is not appropriate to foreclose an attempt by plaintiffs to establish this fact." Id. at 1106 n.7. Return to text.

[117] 462 F.2d 1112 (5th Cir. 1973). Return to text.

[118] Tyler, 517 F.2d at 1106 (quoting Baker, 462 F.2d at 1114); see generally Beverly M.M. Charles, First They Came for the Teachers . . . : Competency Testing and the Decertification of Texas Teachers Issued Certificates Valid for Life, 12 T. MARSHALL L. REV. 1 (1986). But see Michael Rebell, Disparate Impact of Teacher Competency Testing on Minorities: Don't Blame the Test-Takers—or the Tests, 4 YALE L. & POL'Y REV. 375 (1986). Return to text.

[119] Tyler, 517 F.2d at 1102 n.11. As a consequence of this finding, the court had held that the appropriate standard of judicial review was one of strict scrutiny (requiring a compelling state interest) rather than merely of rational relationship. Id. Return to text.

[120] Of course, the majority found that there was no genuine issue of material fact on the issue of purposeful discrimination. Id. at 1093. However, in so doing, it relied unreasonably and without further explanation on the good faith word of the Bar Examiners themselves and their agents, without giving the appellants an opportunity to test such testimony and the credibility of the witnesses on cross-examination before a jury. See supra notes 57-59 and accompanying text. Return to text.

[121] 533 F.2d 942 (5th Cir. 1976). Return to text.

[122] Id. at 944. Return to text.

[123] Id. Return to text.

[124] Id. Return to text.

[125] Id. In addition, the plaintiffs presented evidence that notwithstanding the fact that blacks comprised over 25 percent of the population in Alabama, the number of black lawyers constituted less than 1% of the state population. Id. The plaintiffs argued that this disparity was caused, in part, by the discriminatory and unconstitutional Bar Exam. Id. Return to text.

[126] Id. at 947. Return to text.

[127] Id. Return to text.

[128] Id. The plaintiffs filed a motion to compel the production of those documents. However, without ruling on that motion, the trial court entered a summary judgment in favor of the Bar Examiners. The court found no material issue of fact and held that " 'under the circumstances . . . the disparity in percentage of failures among blacks as compared to whites has little weight and fails to make out a prima facie case sufficient to realign the burden of proof so as to require the Defendants to establish that the exams are not discriminatory.' " Id. at 945 (quoting the district court). Return to text.

[129] Id. at 948. Return to text.

[130] Id. Return to text.

[131] Id. Return to text.

[132] Id. at 949. The Bar Examiners defending this practice claimed that it was crucial to the compelling state interest in identifying attorneys and discouraging persons other than the actual applicants from sitting for the examination. Id. (citing the district court opinion). Return to text.

[133] Id. (citation omitted). Return to text.

[134] Id. at 949-50. Return to text.

[135] Id. at 950. "At the April 20 hearing, the appellee secretary of the Alabama Bar Association stipulated that 'there is no effort by affiant to match the photographs of applicants with the persons actually appearing for the bar examinations, and affiant knows of no one else who attempts to make such a match up.' " Id. at 950 n.8.

Clearly, this admission suggests that the proffered justification for requiring photographs—of deterring impostors from sitting for the Bar Examination—was, at best, disingenuous, and, at worst, a pretext for purposeful discrimination. The court found that such a practice "[o]bviously . . . makes it easier for those to discriminate who are of a mind to discriminate." Id. (citing Avery v. Georgia, 345 U.S. 559, 562 (1953)); see, e.g., Avery v. Georgia, 345 U.S 559 (1953) (involving a jury selection process that identified white jurors on white tickets and black jurors on yellow tickets); Whitus v. Georgia, 385 U.S. 545 (1967) (involving a jury selection process that designated blacks with an identifying code letter after their names); Anderson v. Martin, 375 U.S. 399 (1964) (involving a voting practice that racially identified a black candidate on the voting slate in the voting booth); Jones v. Smith, 420 F.2d 774 (5th Cir. 1969) (involving a jury selection process based on tax records that used different color forms for blacks and whites). Return to text.

[136] Parrish, 533 F.2d at 950. Return to text.

[137] Id. at 944 ("Statistics produced during the litigation showed, for example, that in the last ten bar examinations the passing rate for blacks had been 32% while it had been 70% for whites."). Return to text.

[138] Id. at 949. Return to text.

[139] 401 U.S. 424 (1971). Return to text.

[140] In Griggs, the Supreme Court had held that Title VII precluded the use, in the context of employment decisions, of tests or testing procedures that disproportionately excluded minorities, without regard to intent, absent a demonstration that such tests had been validated as demonstrating "a reasonable measure of job performance." Id. at 436. Return to text.

[141] 517 F.2d 1089 (5th Cir. 1975). Return to text.

[142] Id. at 1096 (citing 42 U.S.C. § 2000e(a)). Return to text.

[143] Parrish, 533 F.2d at 949. Return to text.

[144] Id. at 950. The documents in question consisted of the examination papers and graders' notes, which the plaintiffs wanted in order to see whether the papers of black and white exam takers with similar answers had, in fact, been graded differently. Id. at 947. Although the plaintiffs had moved to compel the production of these documents, the Board resisted and the court entered summary judgment in favor of the Board without ever ruling on the plaintiffs' motion. Thus the court held that it was necessary to remand on at least this issue "in order to permit the plaintiffs to complete their discovery as to matters on which the trial court had not acted prior to its final judgment." Id. at 948. Return to text.

[145] 563 F.2d 1130 (4th Cir. 1977), cert. denied, 435 U.S. 968 (1978). Return to text.

[146] Id. at 1131. Specifically, the evidence showed that plaintiff Spain, a June, 1971 applicant, had an average score of 70.5 and was failed by three examiners. Id. However, applicant number 129, a white June, 1970 applicant, received a score of 71.8 and was failed by three examiners but was then passed by the Board and admitted to practice. Id. Similarly, plaintiff Kelly, a February, 1971 applicant, received an average score of 69.6 and was failed by three examiners. Id. However, applicant number 10, a white February, 1971 applicant, received a score of 69.3 and was failed by two examiners but was then passed by the Board and admitted to practice. Id. Return to text.

[147] Id. Return to text.

[148] Id. (citing Bishop v. Wood, 426 U.S. 341 (1976), overruled as stated in Nichols v. City of Jackson, 848 F. Supp. 718 (S.D. Miss. 1994)). Return to text.

[149] Id. Additionally, the Fourth Circuit was concerned about whether the district court had even possessed the required subject matter jurisdiction to review the denial of admission of an individual to the state bar. Id. However, the majority of the court found it unnecessary to resolve this issue because they agreed that, even if the district court had possessed the subject matter jurisdiction, there was not sufficient proof to entitle the plaintiffs to individual relief in any case. Id. In fact, the court was divided on this question. Judge Hall wrote a separate, concurring opinion in which he stated that, while he agreed with the majority's holding on the merits, he was convinced that the district court did not, in fact, have the subject matter jurisdiction to review questions regarding the admission of individuals to the state bar. Id. at 1132. Judge Hall concluded that such disappointed individuals' proper recourse was to the state supreme court and then only to the United States Supreme Court. Id. at 1133. Return to text.

[150] Id. at 1132. No doubt, the court was also not impressed by the fact that both Spain and Kelley continued to fail on subsequent reexaminations. See id. Return to text.

[151] Id. at 1131. Return to text.

[152] 427 F. Supp. 282 (D. Md. 1977), aff'd sub nom. Pettit v. Ginerich, 582 F.2d 869 (4th Cir. 1978). Return to text.

[153] Id. at 294. Return to text.

[154] Id. at 290-91. Because the state did not record racial data on its bar applicants or require photographs during the years in question, plaintiffs' evidence for the existence of a racial disparity was based on information that they derived through an informal monitoring of the exam by black candidates. Id. at 290 n.4. That information suggested that between 1962 and 1972, the passage rate of whites was approximately 50%, while that of blacks was 6%. Id. Further, the plaintiffs alleged that for 10 of the 11 examination administrations between 1962 and 1973, approximately 50% of whites passed, while only 12% of blacks passed. Id. Lastly, the plaintiffs alleged that between 1962 and 1972, approximately 70% of whites eventually passed the exam after successive reexaminations, while only 20% of blacks eventually passed. Id.

In addition, one failed black bar applicant, Charles Marshall, testified by affidavit that at a post examination meeting between himself and one of the Bar Examiners, he discovered that all of his examination books were marked with a small "c". Id. at 291 n.5. Plaintiffs claimed that such markings suggested that the examination books of black applicants were marked and identified as belonging to a "colored" test taker before they were graded, id., like the different color forms used to distinguish the black plaintiffs in the jury selection cases. See supra note 134. When Marshall asked the Board member about the letter on his examination books, he was told that it represented an internal administrative code. 427 F. Supp. at 291 n.5. Additionally, the Pettit plaintiffs argued, as the Tyler plaintiffs had done, that the Bar Examiners could also identify the examination books of black applicants by their black writing style, also known as Black English. Id. at 291. Return to text.

[155] Id. at 291. The sole basis for this conclusive disposition of the plaintiffs' claim of intentional discrimination was the court's reliance on the deposition of Board Chairman Gingerich in which he represented that, based on their established procedures, the Board did not have the opportunity to discriminate because it could not tell the race of any individual bar applicant from that person's exam materials, seating charts, etc. See id. Regarding the affidavit testimony of the failed black applicant Marshall, who discovered that his examination books had been marked with a small letter "c," the court stated, "Apparently, plaintiffs wish this court to construe the marking as meaning colored." Id. However, without engaging in an analytical process, the court dismissed the possibility that such coding could exist, based on a defense affidavit regarding the proctors' practice during the examination of checking each test taker's name and seat number in order to check attendance. Id. at 292 n.6. Relying on that affidavit, the court concluded that "[t]here is nothing in the record to suggest, however, that the checking process has been used to gather racial information or that even if the process were so used, that the Board had access to the data." Id. at 291 n.5. Just as had been done in the Tyler case, the Pettit court relied presumptively on the statement of the Board members in their affidavits that they did not, and could not, know the race of any individual test taker during the grading process. The court's faith in the word of the Board members was so strong that it concluded that the "stringent procedures adopted by the Board . . . conclusively insure the anonymity of Bar examination candidates and concomitantly, the impossibility of discrimination." Id. at 292 (emphasis added). However, there was no evidence either requested or offered to determine the existence or purpose of an alleged internal Board administrative procedure that resulted in a small "c" being placed on all of Marshall's exam books. Moreover, due to the summary process disposition of this matter, the appellants were not afforded an opportunity to test the credibility of the testimony of the Bar Examiners on cross-examination before a jury. Return to text.

[156] Id. at 292. Return to text.

[157] Id. at 291-92. Return to text.

[158] Id. at 292-93. (citing Schware v. Board of Bar Examiners, 353 U.S. 232, 239 (1957); Tyler v. Vickery, 517 F.2d 1089, 1099-1101 (5th Cir. 1975), cert. denied, 426 U.S. 940 (1976); Whitfield v. Illinois Bd. of Law Examiners, 504 F.2d 474, 476 n.5 (7th Cir. 1974); Feldman v. State Bd. of Law Examiners, 438 F.2d 699, 705 (8th Cir. 1971); Chaney v. State Bar of Cal., 386 F.2d 962, 964-65 (9th Cir. 1967), cert. denied, 390 U.S. 1011, reh'g denied, 391 U.S. 929 (1968); Lewis v. Hartsock, No. 73-16 at 15-16 (S.D. Ohio, March 9, 1976); Shenfield v. Prather, 387 F. Supp. 676, 686 (N.D. Miss. 1974)). Return to text.

[159] Id. at 293. However, the court noted that such disproportionality is not irrelevant; rather, it simply is not "the sole touchstone of an invidious racial discrimination forbidden by the Constitution." Id. (citing McLaughlin v. Florida, 379 U.S. 184 (1964)). Return to text.

[160] Id. (citing Washington v. Davis, 426 U.S. 229, 248-52 (1976); Richardson v. McFadden, 540 F.2d 744, 748-49 (4th Cir. 1976)). Return to text.

[161] Id. Return to text.

[162] Id. (citing Tyler v. Vickery, 517 F.2d 1089, 1102 (5th Cir. 1975)). Return to text.

[163] Id. (quoting Shenfield v. Prather, 387 F. Supp. 676, 689 (N.D. Miss. 1974)). Return to text.

[164] Id. The court quoted the Shenfield court, which noted that a 70% cutoff score had been adopted by 16 of the 24 states whose practices were known to it. Id. There was no indication as to the cutoff scores of the other 8 states and what, if any, standards should be employed to distinguish the arbitrary, but popular, standards from the rational and constitutional ones. See supra notes 100-10 and accompanying text for discussion of the dissent's view in Tyler. Return to text.

[165] Tyler and Parrish were decided in Georgia and Alabama, respectively; Richardson was decided in South Carolina; and Pettit was decided in Maryland. Return to text.

[166] 522 F. Supp. 886 (E.D. Pa. 1981). Return to text.

[167] Id. Return to text.

[168] Id. Scores were raised between February, 1973 and July, 1976. Id. at 895. Return to text.

[169] Id. at 886. Return to text.

[170] Id. For example, the court observed, "For the ten year period from 1933 to 1943, no Black was admitted to the practice of law in Pennsylvania. . . . [F]rom July 1950 to the end of 1952, thirty Black candidates from Philadelphia County took a total of forty-three examinations, some individuals being examined two or more times, and . . . only six of them passed." Id. at 886-87. Return to text.

[171] Id. at 887. The court noted that as early as 1953, the Chancellor of the Philadelphia Bar Association appointed a Special Committee to "investigate the allegation of discrimination in the grading of bar examinations." Id. That committee, known as the "Hastie Committee," was chaired by the late William G. Hastie, a former Judge of the United States Court of Appeals for the Third Circuit. Id. & n.1. Subsequently, in 1970, the chancellor appointed Peter G. Liacouras, then Dean of the Temple University Law School, to chair another committee to "investigate the claims of possible discrimination against black law students." Id. (citation omitted). Return to text.

[172] Id. Return to text.

[173] Id. Return to text.

[174] Id. at 896. Return to text.

[175] Prior to 1972, the Pennsylvania Bar Exam was entirely essay in format. Id. at 888. In February, 1972, the Board added the Multistate Bar Exam (MBE) to its Bar Examination. Id. Return to text.

[176] Id. at 889-91. In support of its argument, the Board noted that the percentage of passing applicants "was much higher than it had been prior to the introduction of the MBE and significantly higher than that of other states." Id. at 891. The Board then contended that the scores were raised from 55 to 60 to remedy this relatively high passage rate. Id. at 891-92. Return to text.

[177] Id. at 890. The court noted, however, that, in setting the passing score for the February, 1972 exam administration, Judge Wilkinson, then Chairman of the Board of Bar Examiners, "believed that the appropriate passing grade for a combined essay-MBE examination should be somewhere between 60 and 70." Id. However, when Wilkinson asked the National Conference of Bar Examiners (NCBE) and the Educational Testing Service (ETS), which had prepared the MBE, to advise him regarding the establishment of a passing score, "neither organization was willing to recommend a passing score." Id. However, in setting the passing score, the court observed that "the Board has always been concerned exclusively with determining what grade in its view demonstrated minimum competence to practice law." Id. Return to text.

[178] Id. at 895 (citing Personnel Adm'r v. Feeny, 442 U.S. 256 (1979); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976)). The court also pointed out that, under the Supreme Court's decision in Arlington Heights, the plaintiffs were not required to show that the challenged action was motivated solely by an intent to discriminate, but they did have to show that "a discriminatory purpose has been a motivating factor in the decision." Id. (citing Arlington Heights, 429 U.S. at 265-66). Return to text.

[179] Id. at 896. Return to text.

[180] Id. Return to text.

[181] Id. at 895. Return to text.

[182] Id. Return to text.

[183] Id. at 894. Return to text.

[184] Id. at 895 (emphasis added). Return to text.

[185] There is no discussion whatsoever in the case regarding whether such a score level could be established. This absence was no doubt due to the court's observation that the expert had concluded that "[n]o matter where the passing point is set, except at the very bottom, more blacks than whites will be failed." Id. Return to text.

[186] Id. at 896. Return to text.

[187] Id. at 896-97. For example, one expert testified that, in his opinion, "the constitutional law essay questions used in 1972 were not fit for use by law schools and that the model answers to the two constitutional law questions were not correct." Id. Another expert testified, "In connection with the MBE, . . . a multiple choice test on legal subjects is of questionable validity because, unlike a mathematics multiple choice test, very few of the wrong answers are patently wrong and many of them are arguably correct." Id. at 897. Return to text.

[188] Id. Return to text.

[189] Id. at 896 (citing Washington v. Davis, 426 U.S. 229 (1976); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957); Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S. 940 (1976); Chaney v. State Bar of Cal., 386 F.2d 962 (9th Cir. 1967), cert. denied, 390 U.S. 1011 (1968); Pettit v. Gingerich, 427 F. Supp. 282, aff'd per curiam, 582 F.2d 869 (4th Cir. 1978)). Return to text.

[190] Id. at 897 (citing Richardson v. McFadden, 563 F.2d 744 (4th Cir. 1976); Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975)). Return to text.

[191] Id. (citing Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975)). Return to text.

[192] Id. at 898. The court went on to observe that, when such a study is conducted, it "should include a comparative analysis of the answers of those applicants who failed to pass with the answers of those who received a passing grade. It was testified at trial that the applicants' answers were not available to the plaintiffs for the period covered in this litigation because it was the practice of the Board to destroy the applicants' answers after a period of time." Id. at 898 n.4.

This suggestion seems to imply that such a comparison might reveal that otherwise comparable answers were given different grades and that the practice of the Board in not maintaining their applicants' answers for a reasonable period of time, especially in light of their awareness of the existence of this problem, was itself suspect and should be corrected. It is also disturbing to note that, at least in the state of Pennsylvania, no such in-depth study was subsequently conducted, despite this court's clarion call for one. Return to text.

[193] In describing the prospects for the future of racial discrimination legal challenges to the bar exam as "bleak," I mean only to suggest that it looks that way to me. The inhospitable attitudinal bent of the judiciary to such challenges and the current national mood against affirmative action and any policies aimed at leveling the playing field and providing opportunities to minorities and women, who have for so long been the victims of officially sanctioned discrimination by the organized bar, leave me with a heavy heart.

The institutional opposition by the bar to minority participation in the law is legion. For example, it was not until 1964 that the Association of American Law Schools' Committee on Racial Discrimination could first state that no member American law school reported denying admission to any applicant on the basis of race or color. SEGAL, supra note 7, at 3. Consider, for example, Dr. Segal's moving description of the American Bar Association reaction to the first black attorney admitted to membership:

In 1912, racism within the legal community was so rampant that a storm arose over the "inadvertent" election of the first three black attorneys to the American Bar Association by its Executive Committee. When the Executive Committee discovered that it had unknowingly elected three members "of the colored race," the committee rescinded its prior action, stating that "the settled practice of the Association has been to elect only white men to membership."

Though the ABA did, ultimately, declare these men to be members, thereafter it passed a resolution requiring all recommendations for membership to be accompanied by the disclosure of the race and sex of the prospective member. Id. That resolution remained in place for more than 30 years and was not rescinded until 1943. See id. at 19.

To this day, of the 23,000 black lawyers and judges in America, over 18,000 are members of the National Bar Association (NBA), which is a national black bar association, and have joined either in addition to, or instead of, joining the American Bar Association. Unfortunately, the current growth and vitality of the NBA is a sad and continuing reminder of the continuing need for such an organization. See Revius O. Ortique, Jr., The National Bar Association—Not Just an Option!, 53 JUDICATURE 390 (1970). Return to text.

[194] See supra part III.A.1-5. Return to text.

[195] See, e.g., supra notes 57-59 and accompanying text. Return to text.

[196] By rough analogy to a criminal proceeding, these results are similar to the situation where the accused defendant denies by sworn affidavit that he committed the crime charged or even had the opportunity to do it and the case is dismissed for lack of any material issue of fact because the court believes that the accused has sworn his innocence in good faith. Similarly, in the civil context, if corporate officers charged by their shareholders with breaches of their fiduciary duties were to deny by sworn affidavit that they committed the offense or even had the opportunity to do it, the case would be dismissed for lack of any issue of material fact should the court be impressed in a like manner with the defendants' good faith. These examples illustrate both the logical and practical absurdity of allowing defendants to escape liability by summary judgment solely on the strength of their sworn affidavits of innocence and lack of opportunity. Nevertheless, this is precisely what has occurred time and time again when minority plaintiffs challenge bar examiners in court. Clearly, in both the criminal and civil examples cited, the proper response should be, if a prima facie case has been made out, that those accused, notwithstanding their good faith denials, must stand trial and have their credibility tested in the crucible of cross-examination before a jury, which under our system is the best test for determining the truth. Return to text.

[197] It can also be argued that so many failed challenges to bar examinations might have actually discouraged some blacks from even going to law school in the first place, since the prospects of passing the bar appear to be so dim. Return to text.

[198] See supra notes 90-96 and accompanying text. Return to text.

[199] There is no way to determine definitively why some judges appear to be hostile and unreceptive to attacks on the bar examination. There may be a number of different explanations or only one. However, one possible source of such judicial hostility may be a heightened sense of personal identification with the bar examination system by the judges themselves. As successful products of that system, they may feel a personal stake in perpetuating their own personal, as well as the public's, perception of it as a fair meritocracy. However, it might be argued that judges should feel a similar personal allegiance when they preside over cases where attorneys are sued for malpractice. I suggest that the two situations are distinctly different. When plaintiffs challenge the bar examination system, they are claiming that it is a biased process that does not truly measure or reward merit alone. By implication, some may feel that if the system is tainted, to some extent those who bear its imprimatur are similarly tainted. In contrast, when an attorney is sued for malpractice, the plaintiff is not attacking the system that judged him fit to practice; rather, they are leveling a personal accusation at a particular attorney's handling of a particular case. In essence, they are not saying that the system is blameworthy but that the attorney is personally blameworthy in his conduct of a particular case. The cause of the attorney's malpractice may have been incompetence, which, to some extent, does implicate the system that produced him. However, it may also have been due to a host of factors that are all personal to the attorney and do not necessarily implicate the system, such as inefficiency, inattention, malfeasance, etc. Consequently, a judge hearing an attorney malpractice case is far less likely to feel personally implicated than when hearing a challenge to the bar examination itself. In fact, a judge hearing a malpractice case would reasonably view the system as "good," in the sense of establishing sensible standards of attorney conduct, and the individual attorney as blameworthy, to the extent that he violated those standards. Thus, in being called upon to rule in favor of a plaintiff suing an attorney, judges could reasonably view themselves as defending the system. However, in being called upon to rule in favor of a plaintiff challenging the bar examination on the basis of illegal bias, judges could reasonably view themselves as endorsing an attack on the system. Some judges could understandably view such an attack on the system, by implication, as an attack on themselves. As a consequence, in an effort to defend themselves, such judges might well feel the need to defend the system in ways that do not afford a full and fair evaluation to the plaintiff's case. I am not suggesting that this judicial resistance is always either conscious or intentional, although sometimes it may be. More often than not, it is more likely an unconscious and unintentional reaction to a subtle and perceived affront to their status as the deserving products of a fair meritocracy. Return to text.

[200] See supra note 135 and accompanying text (discussing the voting rights cases, where under the official state and local policy, black voters were identified by such methods as using different color cards or tickets or the letter "c," for colored, beside their names; state and local officials in the South not only instituted and utilized these blatantly discriminatory systems but, when challenged, vigorously defended them in court). Return to text.

[201] Tyler v. Vickery, 517 F.2d 1089, 1106 (5th Cir. 1975). Return to text.

[202] The optimistic view is to consider this perspective wholly generational and, therefore, a problem of the past which fades daily as that generation of lawyers and officials grows older and retires. However, a more realistic view is that the prospects for a radically different experience for the lawyers of today and even tomorrow are not terribly hopeful, given statistics that indicate that only about 10% of the law school population consists of minorities and that there has been only a 0.1% increase in the number of black lawyers in the last 10 years. See YAMAKI ET AL., supra note 6, at 9-10 (law school minority populations); Carey & Parker, supra note 25, at A1 (black lawyers). Return to text.

[203] Tyler 517 F.2d at 1096. Return to text.

[204] Id. at 1095. See also material on U.C.C. Article 2 and use of rules by analogy, infra note 206. Return to text.

[205] Tyler, 517 F.2d at 1096. Return to text.

[206] A particularly illustrative example is Article 2 of the Uniform Commercial Code (U.C.C.), which specifically applies only to the sale of goods. However, Article 2 has been applied in a great many contexts that do not expressly involve the sale of goods. Such cases fall into two general categories: sales of goods with non-goods and sales of goods with services. A minority of courts apply Article 2 only to the goods sold in the transaction, while the majority apply Article 2 to the entire transaction or not at all depending upon whether the "predominant purpose" of the whole transaction was a sale of goods. "[I]n the overwhelming majority of cases, Article 2 has been found applicable." 1 JAMES J. WHITE & ROBERT S. SUMMERS, UNIFORM COMMERCIAL CODE 26 (3d ed. 1988) (citations omitted); see, e.g., E. Allen Farnsworth, Good Faith Performance and Commercial Reasonableness Under the Uniform Commercial Code, 30 U. CHI. L. REV. 666, 678 (1963) ("Is it not possible that the general obligation of good faith with the merchant's objective standard may be extended by analogy to contracts not literally within the purview of the Code? The comments to the Code suggest the possibility of such extension.") (citing U.C.C. Sec 1-102, comment 1); see also E. Allan Farnsworth, Implied Warranties of Quality in Non-Sales Cases, 57 COLUM. L. REV. 653 (1957) (suggesting that sales warranties should be extended by analogy to bailments and contracts involving only the provision of services as opposed to goods); Cecil J. Hunt, II The Price of Trust: An Examination of Fiduciary Duty and the Lender-Borrower Relationship, 29 WAKE FOREST L. REV. 719, 770-71 n.321 (1994) (noting that the U.C.C.'s express application to the sale of goods can be reasonably extended to the context of a commercial loan).

Article 2 of the Code applies only to the "sale of goods." However, it can be applied to the lender-borrower relationship from any one or more of three different perspectives: (1) by analogizing the underlying purposes and policies behind the rules pertaining to both types of transactions (The U.C.C. provides that it should be 'liberally construed and applied to promote its underlying purposes and policies[.]'); or (2) by characterizing their relationship as a "mix" of a transaction involving both goods and services; or (3) by characterizing the borrowed funds in a loan transaction as "goods" in and of themselves.

[207] See Tyler, 517 F.2d at 1096 (concluding that the Georgia Board of Bar Examiners was neither an "employer," an "employment agency," nor a "labor organization" within the meaning of Title VII). It is interesting to note that all subsequent cases faced with this question cite Tyler for the proposition that Title VII does not apply to the equal protection analysis of a challenge to a bar examination, and Tyler's exact language has been reiterated in other cases. See, e.g., Woodward v. Virginia Bd. of Bar Examiners, 598 F.2d 1345, 1346 (4th Cir. 1979). Return to text.

[208] This refusal was based solely on the reasoning that since bar examiners were neither employers nor employment agencies, Title VII did not apply by it own terms. See supra notes 67-70 and accompanying text discussing Tyler. Return to text.

[209] 490 U.S. 642 (1989). Return to text.

[210] 401 U.S. 424 (1971). Return to text.

[211] See supra notes 60-69 discussing the employer employment agency theory of Title VII as applied by analogy. Return to text.

[212] See Griggs, 401 U.S. at 432; see also Reginald Leamon Robinson, The Impact of Hobbe[s]'s Empirical Natural Law on Title VII's Effectiveness: A Hegelian Critique, 25 CONN. L. REV. 607, 609 (1993). Professor Robinson noted that, even after Title VII was amended, "[t]hese amendments proved ineffective, and in 1989 the Court decided Wards Cove Packing Co. v. Atonio which severely weakened the Griggs disparate impact approach. As a result, Congress passed the Civil Rights Act of 1991 . . . , the purpose of which was to counteract the Supreme Court's more conservative jurisprudence." Robinson, supra, at 609 (citations omitted). Return to text.

[213] Griggs, 401 U.S. at 432. Return to text.

[214] Id. Return to text.

[215] Id. Return to text.

[216] Id. Return to text.

[217] Id. Return to text.

[218] Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 658-59 (1989). Return to text.

[219] Id. Return to text.

[220] Id. Return to text.

[221] Id. In determining whether this test had been met, the Wards Cove Court noted that "the dispositive issue is whether a challenged practice serves, in a significant way, the legitimate employment goals of the employer." Id. at 659. However, the Court also pointed out that, in order to be considered "legitimate employer goals," the justification had to be more than just a mere insubstantial one "because such a low standard of review would permit discrimination to be practiced through . . . spurious . . . employment practices." Id. However, the Court also concluded that "there is no requirement that the challenged practice be 'essential' or 'indispensable' to the employer's business for it to pass muster." Id. Return to text.

[222] Id. at 657-60. Thus, under Wards Cove, employers need only plead, but not prove, a legitimate employment goal. Id. at 660. The burden then shifts to plaintiffs to identify with specificity the particular employment practice that they claim violates Title VII. Id. In support of its holding that the burden of persuasion must rest on the plaintiff, the Court in Wards Cove quoted 42 U.S.C. § 2000e(2)(a) (1988): "The persuasion burden here must remain with the plaintiff, for it is he who must prove that it was 'because of such individual's race, color,' etc., that he was denied a desired employment opportunity." Id.; see also Robinson, supra note 212, at 638.

With this 1989 decision, the Court redefined the thrust of Title VII and limited Griggs['] liberal scope of liability. Wards Cove thus established a new touchstone. Under Wards Cove, employers needed to prove only that challenged practices served legitimate goals 'in a significant way.' This rule could be viewed as undermining Title VII's goal of absolute equality in the workplace and as supplanting Griggs' liberal liability threshold. To this extent, Wards Cove redefined Title VII.

[223] Wards Cove, 490 U.S. at 660-61. Return to text.

[224] Id. at 661. Return to text.

[225] Kenneth Williams, A Legal Challenge to Bar Examinations, 16 T. MARSHALL L. REV. 537, 539 n.24 (1991) (quoting Recent Cases, 103 HARV. L. REV. 806, 808 n.21 (1990)). Return to text.

[226] 709 F. Supp. 345 (S.D.N.Y. 1989). Return to text.

[227] Id. at 348. Return to text.

[228] Id. Under Title IX all federally funded educational programs are prohibited from discriminating on the basis of gender. Id. at 360 (citing 20 U.S.C. § 1681(a) (1988)). Return to text.

[229] Id. at 348. Return to text.

[230] Id. at 364. Return to text.

[231] Id. Return to text.

[232] The plaintiffs' evidence of disparate impact was primarily statistical. For example, they demonstrated that for the academic year 1986-87, girls represented 53% of the applicants for the state merit scholarships, id. at 355 n.26; however, only 43% of the scholarship recipients were girls that year, id. at 355. The plaintiffs argued that this gender-based disparate impact was the result of the state's use of a testing standard that was not rationally related to its purpose and therefore deprived them of equal protection under the law. Id. at 348; see also Kary L. Moss, Standardized Tests as a Tool of Exclusion: Improper Use of the SAT in New York, 4 BERKELEY WOMEN'S L.J. 230, 238 (1989-90) (discussing Sharif). Return to text.

[233] See W. Sherman Rogers, Title VII Preemption of State Bar Examinations: Applicability of Title VII to State Occupational Licensing Tests, 32 HOW. L.J. 563, 602 (1989) (analyzing the Fifth Circuit's decision in Tyler and its progeny and concluding that, "[f]or whatever reason, the Fifth Circuit's statement seems to have been blindly accepted by other courts without scrutiny"). Return to text.

[234] See, e.g., Woodard v. Virginia Bd. of Bar Examiners, 598 F.2d 1345, 1346 (1979); Parrish v. Board of Comm'rs of Ala. State Bar, 533 F.2d 942, 949 (5th Cir. 1976); Delgado v. McTighe, 442 F. Supp. 725, 730 (E.D. Pa. 1976). But see Woodard v. Virginia Bd. of Bar Examiners, 420 F. Supp. 211, 213 (E.D. Va. 1976). Return to text.

[235] An employer is defined as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." 42 U.S.C. § 2000e(b) (1988) (emphasis added). Return to text.

[236] See Pub. L. No. 92-261, 86 Stat. 103 (1972) (codified as amended at 42 U.S.C. § 2000e(a) (1988) (amending definition of "person" to include governments, governmental agencies, and political subdivisions); see also Florida v. Long, 487 U.S. 223, 228 n.1 (1988) (noting how the 1972 amendments to Title VII made states and local governments "employers" under Title VII for the first time); see generally Rogers, supra note 227, at 563. Return to text.

[237] See Sparks v. The Character & Fitness Committee of Kentucky, 818 F.2d 541 (6th Cir. 1987) (holding state bar examiners performed quasi-judicial function of state supreme court). Return to text.

[238] 420 F. Supp. 211 (1976), aff'd, 598 F.2d 1345 (4th Cir. 1979). Return to text.

[239] Id. at 213 n.3. Return to text.

[240] Id. (citations omitted). Return to text.

[241] Id. at 214. In so holding, the court reasoned, "The Supreme Court has recognized 'that the States have a compelling interest in the practice of professions within their boundaries, and that as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions.' " Id. (quoting Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975) (emphasis added by Woodard court)). Return to text.

[242] Woodward v. Virginia Bd. of Bar Examiners, 598 F.2d 1345, 1346 (4th Cir. 1979). Return to text.

[243] Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 718 n.33 (1978) (citations omitted). Return to text.

[244] Spirt v. Teacher Ins. and Annuity Ass'n, 691 F.2d 1054, 1063 (2d Cir. 1982), vacated and remanded, 463 U.S. 1223 (1983) (citations omitted). Return to text.

[245] Susan E. Brown & Claire Levay, Melendez v. Burciaga: Revealing the State of the Art in Bar Examinations, B. EXAMINER, May 1982, at 4, 6; see supra notes 165-177 and accompanying text (discussing Delgado v. McTighe and describing how neither the officials from the Educational Testing Service, which designed the Multistate Bar Exam, nor the National Conference of Bar Examiners could advise the Pennsylvania Bar Examiners as to what passing score would ensure minimum competence). Return to text.

[246] 522 F. Supp. 886 (E.D. Pa. 1981). Return to text.

[247] Id. at 897. Return to text.

[248] AMERICAN BAR ASSOCIATION SECTION OF LEGAL EDUCATION AND ADMISSIONS TO BAR, REPORT AND RECOMMENDATIONS OF THE TASK FORCE ON LAWYER COMPETENCY: THE ROLE OF THE LAW SCHOOLS (1979) [hereinafter ABA REPORT]. Return to text.

[249] Id. at 9. Return to text.

[250] AMERICAN LAW INSTITUTE- AMERICAN BAR ASSOCIATION COMMITTEE ON CONTINUING PROFESSIONAL EDUCATION, A PEER REVIEW SYSTEM: DISCUSSION DRAFT 11 (1980) [hereinafter ALI-ABA COMMITTEE DRAFT]. Return to text.

[251] Id. at 154. Return to text.

[252] Stephen P. Klein, Summary of Research on the Multistate Bar Examination, B. EXAMINER, Aug. 1983, at 10, 13; see also John F. O'Hara & Stephen P. Klein, Is the Bar Examination an Adequate Measure of Lawyer Competence, B. EXAMINER, Aug. 1981, at 28, 29. Dr. Klein, perhaps the most prominent defender of the bar exam on the basis of statistical correlations, has further acknowledged that "[n]o studies have attempted to correlate MBE (Multistate Bar Exam) scores with 'success as a lawyer' because of the difficulty of obtaining agreement as to a valid measure of success." See Rogers, supra note 233, at 590. Return to text.

[253] Edward F. Bell, Do Bar Examinations Serve a Useful Purpose?, 57 A.B.A. J. 1215, 1216 (1971). The author also concludes that to the extent that the bar exam's purpose is to determine lawyer competence, "that purpose has not been accomplished. There are many grossly incompetent lawyers practicing law today who have passed a bar examination that failed to eliminate them and to prevent them from practicing on an unsuspecting public." Id. Return to text.

[254] Id. Return to text.

[255] RICHARD S. BARRETT, COMMISSION ON TESTING AND PUBLIC POLICY, CONTENT VALIDITY IN EMPLOYMENT TESTING 89 (1989) (draft report); see also Emsellem, supra note 5, at 44. Return to text.

[256] Symposium, The Minority Candidate and the Bar Examination, 5 BLACK L.J. 120, 178 (1977). Return to text.

[257] Alfred E. Carlson & Charles E. Werts, Relationships Among Law School Predictors, Law School Performance, and Bar Exam Results, 3 REPORTS OF LSAC SPONSORED RESEARCH 211, 214 (Sept. 1976). But see Erwin N. Griswold, In Praise of Bar Examinations, 60 A.B.A. J. 81 (Jan. 1974). Return to text.

[258] 540 F.2d 744 (4th Cir. 1976). Return to text.

[259] Id. at 746-47. Return to text.

[260] See THE NEW YORK STATE BAR ASSOCIATION, FINAL REPORT OF THE SPECIAL COMMITTEE ON LAWYER</